Citation Nr: 1039189
Decision Date: 10/20/10 Archive Date: 10/27/10
DOCKET NO. 07-23 334 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUE
Whether the Veteran is competent for Department of Veterans
Affairs (VA) benefits purposes.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Hallie E. Brokowsky, Counsel
INTRODUCTION
The Veteran served on active duty from May 1969 to November 1970.
This matter comes before the Board of Veterans' Appeals (Board)
from a February 2007 rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In
that decision, the RO confirmed that the Veteran was not
competent to handle the disbursement of funds.
In his July 2007 substantive appeal, the Veteran requested a
hearing before the Board in Washington, D.C., and one was
scheduled for July 2010. As the Veteran did not appear for the
hearing and did not offer an explanation as to why he failed to
do so, his hearing request is considered withdrawn. See
38 C.F.R. § 20.704(d) (2010).
FINDING OF FACT
The Veteran's symptoms, including cognitive impairment and
paranoid schizophrenia, cause him to lack the mental capacity to
contract or to manage his affairs, including the disbursement of
funds without limitation.
CONCLUSION OF LAW
The Veteran is not competent for the purpose of receiving direct
payment of his VA benefits. 38 U.S.C.A. § 5107 (West 2002); 38
C.F.R. §§ 3.102, 3.353 (2010).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Veterans Claims Assistance Act (VCAA)
The VCAA, codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5106,
5107, 5126, was signed into law on November 9, 2000.
Implementing regulations were created, codified at 38 C.F.R. §§
3.102, 3.156(a), 3.159 and 3.326.
The VCAA revised VA's obligations insofar as notifying a claimant
of the type of evidence needed to substantiate a claim -
including apprising him of whose specific responsibility, his or
VA's, it is for obtaining the supporting evidence, and giving him
an opportunity to submit any relevant evidence in his possession.
There is also a requirement that VCAA notice, to the extent
possible, be provided prior to initially adjudicating the claim
(in the interest of fairness), and that VA explain why, on
occasions when this is not done, it is nonetheless nonprejudicial
and therefore, at most, harmless error. In order for the Court
to be persuaded that no prejudice resulted from a notice error,
"the record must demonstrate that, despite the error, the
adjudication was nevertheless essentially fair." Dunlap v.
Nicholson, 21 Vet. App. 112, 118 (2007). See also Mayfield v.
Nicholson, 19 Vet. App. 103, 128 (2004), rev'd on other grounds,
444 F.3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19
Vet. App. 473 (2006); Pelegrini v. Principi, 18 Vet. App. 112
(2004) ("Pelegrini II"); Charles v. Principi, 16 Vet. App. 370,
373-74 (2002); Quartuccio v. Principi, 16 Vet. App. 183, 186-87
(2002).
There are certain situations, however, when the VCAA does not
apply. The United States Court of Appeals for Veterans Claims
(Court) has held that where the law, and not the underlying facts
or development of the facts are dispositive in a case, the VCAA
can have no effect on the appeal. See Manning v. Principi,
16 Vet. App. 534, 542 (2002). See also Smith v. Gober, 14 Vet.
App. 227 (2002) (VCAA has no effect on appeal limited to
interpretation of law); Dela Cruz v. Principi, 15 Vet. App. 143
(2001) (VCAA not applicable where law, not factual evidence, is
dispositive). Moreover, VA's General Counsel has held that the
notice and duty to assist provisions of the VCAA are not
applicable to a claim, as here, where it cannot be substantiated
because there is no legal basis for it, or because the undisputed
facts render the claimant ineligible for the claimed benefit.
See VAOPGCPREC 5-2004 (June 23, 2004).
In this case, the Board observes that VCAA notice is not required
because the issue presented involves a claim which cannot be
substantiated as a matter of law. See Sabonis v. Brown, 6 Vet.
App. 426, 430 (1994) (holding that, where the law and not the
evidence is dispositive, the Board should deny the claim on the
ground of the lack of legal merit or the lack of entitlement
under the law); VAOPGCPREC 5-2004 (June 23, 2004) (VA is not
required to provide notice of the information and evidence
necessary to substantiate a claim where that claim cannot be
substantiated because there is no legal basis for the claim or
because undisputed facts render the claimant ineligible for the
claimed benefit). As will be explained below, because the VCAA
applies only to claims for benefits under chapter 51 of title 38
of the U.S. Code, and an applicant for restoration of competency
such as the Veteran is not seeking benefits under chapter 51,
but, rather, is seeking a decision regarding how his benefits
will be distributed under chapter 55, the VCAA is inapplicable in
this case. Sims v. Nicholson, 19 Vet. App. 453, 456 (2006).
Nevertheless, the Board adds that general due process concerns
have been satisfied in connection with this appeal. See 38
C.F.R. § 3.103 (2010). The appellant has been accorded ample
opportunity to present evidence and argument in support of his
appeal. Therefore, further discussion of the VCAA is not
required. See Bernard v. Brown, 4 Vet. App. 384, 392-394 (1993).
Legal Criteria
Under VA regulations, a mentally incompetent person is one who,
because of injury or disease, lacks the mental capacity to
contract or to manage his or her own affairs, including
disbursement of funds without limitation. 38 C.F.R. § 3.353(a).
Rating agencies are authorized to make official determinations of
competency and incompetency for the purpose of existing laws, VA
regulations and VA instructions. Such determinations will be
controlling for purposes of direct payment of current benefits.
38 C.F.R. § 3.353(b).
Unless the medical evidence is clear, convincing, and leaves no
doubt as to the person's incompetency, the rating agency will not
make a determination of incompetency without a definite
expression regarding the question by the responsible medical
authorities. 38 C.F.R. § 3.353(c). Determinations as to
incompetency should be based upon all evidence of record, and
there should be a consistent relationship between the percentage
of disability, facts relating to commitment or hospitalization,
and the holding of incompetency. Id.
There is a presumption in favor of competency. Where reasonable
doubt arises regarding a beneficiary's mental capacity to
contract or to manage his affairs, including the disbursement of
funds without limitation, such doubt will be resolved in favor of
competency. 38 C.F.R. § 3.353(d); see also 38 C.F.R. § 3.102.
Analysis
In this case, the Board finds that that the appellant is not
competent to manage disbursement of funds. He is in receipt of
service connection for service connection for chronic paranoid
schizophrenia, rates 100 percent disabling. He has been
hospitalized several times due to his service-connected
psychiatric disability including as a result of involuntary
commitment. He has been rated as incompetent to manage his own
funds since February 1990. The December 2006 VA examiner found
that the Veteran's score on a test for organic brain damage found
that the Veteran was in the severely impaired range and
intellectual functioning tests showed low to below average
scores; the VA examiner found that the Veteran was unlikely to
have difficulty coping with simple money management tasks.
Moreover, the VA examiner found that the Veteran's paranoid
schizophrenia was chronic, and resulted in severe psychosocial
and occupational impairment; his current functioning was
dependent on medication compliance. The more recent June 2009 VA
examination report showed that the Veteran had also been
diagnosed with elevated cholesterol, nicotine dependence,
hypertension, and degeneration of the lumbosacral spine. The VA
examiner, following review of the Veteran's VA treatment records
and mental status examination, concluded that the Veteran's
schizoaffective disorder, combined with the Veteran's inability
to comply with appointments or provide a list of expenses,
indicated that the Veteran was unable to manage his finances.
The VA examiner also noted that the Veteran was unable to work
and had a restricted social network.
As the VA psychiatrist from the December 2006 VA examination and
the VA psychologist from the June 2009 VA examination explained
the reasons for their opinion after a comprehensive and accurate
discussion of the evidence of record, these opinions, based on
the Veteran's cognitive impairment, psychiatric symptoms, and
lack of support structure, are entitled to significant probative
weight and constitutes clear and convincing evidence that leaves
no doubt as to the Veteran's incompetency. See 38 C.F.R. §
3.353(c). Cf. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295,
304 (2008) (most of the probative value of a medical opinion
comes from its reasoning).
The above evidence reflects that the Veteran symptoms, including
cognitive impairment and chronic paranoid schizophrenia, cause
him to lack the mental capacity to contract or to manage his
affairs, including the disbursement of funds without limitation.
The Board has considered the Veteran's statements to VA personnel
that his money is being stolen from him and that he is able to
manage his funds, but is being taken advantage of by his
fiduciary. Accepting the Veteran's statements as credible, the
Board notes that the Veteran's inability to provide expense and
payment information is not the only or primary basis of the
conclusions that he is not competent. Thus, these facts do not
undercut the repeated findings and probative medical opinions
above indicating that the Veteran's symptoms cause him to lack
the mental capacity to contract or to manage his affairs,
including the disbursement of funds without limitation. The
Board further notes that the treatment records do not suggest a
return to competency to handle funds. At best, there is a
repeated notation that insight and judgment are impaired, and
that the Veteran's medications merely help the Veteran's
hallucinations. The medical conclusions support the prior
determination that the appellant is not competent.
The Board has also broadly considered the pleadings to include
the appellant's belief that he is competent. However, the
observations and opinions of skilled medical professionals are
far more probative than the appellant's self assertion of
competency. The most probative evidence is clear, convincing and
leaves no doubt.
For the foregoing reasons, there is a preponderance of the
evidence (rising to the level of clear, convincing and leaving no
doubt) which indicates that the Veteran is not competent for the
purpose of receiving direct payment of his VA benefits. The
benefit-of-the-doubt doctrine is therefore not for application,
and the request to restore competency must be denied. See 38
U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v.
Derwinski, 1 Vet. App. 49, 53 (1990).
ORDER
Restoration of competency is denied.
____________________________________________
V. L. JORDAN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs